Though the South Dakota Legislature balked at committing additional funds for a new men’s prison, the battle is far from over. Now, a lawsuit is before the state Supreme Court pitting the state against residents near the proposed site.
Ultimately, the debate in front of the state Supreme Court Tuesday orbited two key matters — should the state receive permission from a lower entity, such as counties, prior to construction, and sovereign immunity.
A grouped formed to resist the proposed site in Lincoln County is called NOPE, or Neighbors Opposing Prison Expansion. Arvid Swanson is NOPE’s attorney.
Ultimately, Swanson contended this is not an effort to explicitly halt the construction of the prison in Lincoln County, but instead require a conditional use permit or rezoning request.
That would require public input from residents of Lincoln County, which has seen strong opposition to the construction of the facility.
Citing Lincoln County V. Johnson, a 1977 ruling on a similar situation when a landfill was being considered, Swanson said precedent supports residents’ rights to submit input in a public hearing.
Across the courtroom, Assistant Attorney General Grant Flynn represents the state. He requested dismissal of the case, arguing much of this debate is legally fraught under the concept of sovereign immunity.
That’s a legal concept stating the government cannot be the defendant in a lawsuit without its consent, effectively holding governments completely free from all criminal or civil court proceedings. As such, he argues the state is not beholden to rezoning requests.
This is a carryover practice from English common law that comes from the philosophy that, quote, “the king can do no wrong.” The “king” in this case being the state government of South Dakota.
The justices are now in deliberations regarding the case, and the final ruling is expected to be returned in coming months.
The current term of the state Supreme Court is being hosted at Black Hills State University and continues this week.